A Few More Points on McDonald

Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause. No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause – just denying to take up the issue in light of the long line of Substantive Due Process incorporation.

Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision. While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes. Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states. That means P or I is relevant and enters the casebooks and Court precedent.

The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments. They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age. This may or may not be correct as a matter of policy or social science – the evidence I’ve seen seems to point against them – but it’s irrelevant to the legal analysis. If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate. As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation. Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.

Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible. One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.

Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous. There but for the grace of God goes any right – and any limitation on government power. As I said yesterday, “Thank God that vote is Justice Thomas’s.”